Early on Monday morning, a freelance writer and creative consultant named Scott Frazier came to a rude awakening: “Just got stopped from ordering delivery unless I ‘understand and agree’ that @Doordash employees are not ‘employees’ and ‘acknowledge and agree’ that @Doordash is not a delivery service lol,” he wrote on Twitter.
The Tweet was liked over 2,000 times and retweeted over 500 when this story went live.
For the 59 million U.S. workers—more than a third of the America’s workforce—who have participated in the “gig economy” either as a side-hustle or a primary source of income, this is not news. Claiming that delivery is not core to a company’s business is the app economy’s means of circumventing the Borello test, the Supreme Court of California’s litmus for whether workers qualify as W-2 employees—with all the benefits, like health insurance, sick days, 401ks, and more that that entails—or as 1099 independent contractors, which affords autonomy and little else.
Which is why Doordash, the company that inspired the viral tweet and whose purpose is pretty exclusively to deliver edible goods, maintains in its terms of use that it is “not a restaurant, delivery service, or food preparation business.” Nor is GrubHub, which is “a virtual marketplace Platform that connects hungry diners with third-party service providers.” Likewise, when you transport your body—or your McDonald’s—via Uber, you acknowledge that “Uber does not provide transportation.”
The Doordash guys who hand over your late-night pizzas are not employees but “independent delivery contractors” (like Tinder, but for linking up hungry people and drivers with food); your hangover BEC arrives via GrubHub’s “independent delivery service providers” (the same); you get from rapid-testing-center to six-person-dining-igloo via Uber’s “independent third party transportation providers.” And so on, and so forth.
This ontological quagmire is not amusing to the Biden administration, which is reconsidering the categorization of gig-workers as non-employees: “We are looking at it but in a lot of cases gig workers should be classified as employees… in some cases they are treated respectfully and in some cases they are not and I think it has to be consistent across the board,” Labor Secretary Marty Walsh told Reuters last week.
It’s a notable 180 from the approach of the Trump Administration, which made a point of a last-ditch January attempt to keep gig workers in the independent-contractor zone.
How this plays out in the future will also depend largely on what happens in the courts, both in the U.S. and abroad. In 2018, a driver made a splash when he brought a suit against Grubhub for denying him employee status—the Northern California district court that saw that case, known as Lawson vs. Grubhub subsequently ruled against the driver. Nevertheless, the case has been placed back on the active docket in California as of January 28 of this year, and other cases, like one seen in New York last March, ended more favorably for workers and less favorably for Uber-owned Postmates.
Said New York Attorney General Letitia James at the moment: “delivery drivers are employees and are entitled to the same unemployment benefits other employees can obtain.” Just don’t ask anyone’s Terms of Use.